How Arbitration Can Save Time and Money and Why it Might Not

I recently attended the Legal Education Society of Alberta's seminar on arbitration. Here are a few key things I took from it that all civil litigators and parties to arbitrations should be aware of:

1. Arbitration is not a panacea. Arbitration agreements and arbitration clauses need to be carefully drafted to ensure that they are appropriate to the circumstances. Adding boiler plate to your contracts is not enough.
2. The effiency of arbitration depends largely on the procedures that the parties adopt. Arbitration counsel should be careful to select appropriate rules and should not select specifc procedures until the issues being disputed are somewhat clear. When in doubt, the arbitrator should be given discretion to make reasonable choices about procedure.
3. Sometimes three heads are better than one. Having one arbitrator costs less but having a larger panel often leads to better-reasoned decisions. Allowing appeals to a three-person panel is a possible compromise.
4. Arbitrator appointments can be contentious. If you have to apply to court to have one appointed, provide a list of options to assist the court.
5. Be sure to follow your adopted arbitration rules precisely when initiating a claim. Otherwise the arbitration may be a nullity and limitations periods may elapse. This is particularly a concern when parties adopt administered arbitration rules that contain provisions for initiating arbitration that they are not aware of.
6. Arbitration often narrows the procedural options available to litigants but also provides options that would not be allowed under the rules of court. This is especially true when dealing with expert evidence.
7. Arbitration awards are more readily enforceable than judgements in foreign jurisdictions.

It was a great seminar over all and I recommend attending it next time it is offered if you are involved in civil claim arbitration.

Litigators, Keep Tabs on What You’ve Paid For: Translation Costs

I am one of those rare consumers that looks passed the total due on a bill. Sadly, far too often I try to figure out a bill and cannot even guess what I am being charged for. Sometimes it seems that the information I need is not available and what’s written on the bill is intentionally unclear. The scant detail put into many invoices and receipts by experts is not enough for litigators who rely on them.

Why not? Once the smoke clears, a winner is crowned and one party is left licking its wounds, one of the biggest wounds is often a costs award. A substantial portion of many costs awards is devoted to disbursements including expert opinions, translation costs, etc. Not surprisingly, cost awards are often subject to scrutiny and litigation.

In Abbot Laboratories,[1] a Federal Court assessment officer considered costs for patent translations. The costs were granted for a reduced amount because the respondent failed to provide sufficient evidence. The assessment officer was not sure whether some translated documents were translated by an expert or by the respondent. Similarly, at paragraph 147 the Court noted that due to “obscurity of the evidence” it would only allow $2,100 out of a claim for $2,903 costs for translation.

So, when you assist a litigator, don’t let your evidence be obscure. For translators invoices, this might mean identifying translated documents by title and identifying a law firm’s file number for each translation task.[2] For lawyers, this will likely mean reviewing bills as they come in and ensuring that they are clear about what is being charged for. Once you win your client's case, these bits of paper become key evidence.